THE INFORMATION ON THIS BLOG IS WRITTEN BY AN ATTORNEY LICENSED IN CALIFORNIA. The validity of information outside of California has not been verified. THE INFORMATION ON THIS WEBSITE IS NOT MEANT TO CREATE A LEGAL RELATIONSHIP. David Nitka will only acknowledge an attorney-client relationship with those persons who have a signed retainer agreement with David Nitka or his law office.

Friday, March 19, 2010

Is your Lawyer in touch with the Future

The practice of law often seems stodgy and full of old white men shouting about dusty and forgotten documents. Which may be true at times.

In reality, the legal field is ever changing. Lawyers are constantly trying to figure out how to conform the law to advances in technology and the changing needs of society.

Some of these changes are vast and far reaching, often decisions of the supreme court of this affect. Other decisions issued by a lower court can have a substantial impact on a single practice area.

Such is the case of the recent Decisions of Almaraz/Guzman and Ogilvie.

Each of these cases is currently on appeal and the law could change again. Regardless, your attorney should be familiar with these cases and should discuss with you raising these issues at trial.

The decisions revolve around rather complex principles in the California Workers' Compensation system so I will be using some oversimplifications.

This all makes sense with historical context:
Pre 2004 - Workers Compensation in California operated under the "old rates" which provided whole person impairments to injured workers as a percentage impairment. The percentage equalled a dollar value. Low value cases would be in the 20% range which equalled aproximately $15,000.

2004 - Arnold Schwarzenegger following his campaign promise on Workers Comp reform passes SB899 which demands objective findings to support the awards in accordance with the AMA guides 5th edition. Further the whole person impairment percentages are revised.

Post 2004 - Low value cases are likely to have a value below 10% whole person impairment which equates to approximately $6500.

Post 2004 the value of cases was substantially diminished. There is a separate debate as to whether the new laws adequately compensate injured workers. That is not the discussion here.

In order to provide for injured workers, plaintiff's attorneys got creative and found some ways to get the value of cases higher.

Almaraz/Guzman - Under SB 899, a whole person impairment must be based on objective criteria and determined in accordance with the AMA guides 5th edition. The guides provide the basis for rating impairments. The decisions in Almaraz/Guzman permit a doctor to look beyond the strict rules laid out in the guides so that the whole person impairment attributed to the worker "Accurately and Adequately" describes their level of impairment.

What this means is that the doctors are still bound by the AMA guides but may take a more liberal view of the guides, using other sections and analogies to other injuries in order to more "adequately and accurately" reflect the injured workers injury. This can increase a whole person impairment.

The case law indicates there are several factors where the Almaraz/Guzman analysis will be more at issue:
1. Is this a post surgery case. Surgeries are rated lower in the new guides which may show that the injured worker is not "adequately" or "accurately" compensated in the claim.

2. Can the worker return to work. If the injury puts the person entirely out of work it is more likely than not a very serious injury which would indicate a higher level of compensation.

3. Age - If the individual is found to be older, their injured may have a greater impact on their ability to return to work which may not be accounted for in the rating.

4. Complicating Factors - This refers to extraneous factors which are not considered in the AMA guides which still should be considered. questions like did the surgery work? is the injured worker likely to improve over time.

5. Is there an obvious or patently low WPI for the injury described.

The above issues should be used by your attorney in deposing the doctor and determining whether an Almaraz/Guzman analysis is appropriate in your case.

Next week a discussion of Ogilvie.

Monday, March 15, 2010

Are you being returned to work?

Injuries happen; at work, away from work, on vacation or at home.

Regardless of the cause of your injury, the Americans with Disabilities Act (Federal) and California Fair Employment and Housing Act (State), known as ADA and FEHA have created rights for disabled individuals right to return to work.

Under California Law and Federal Law, once an employer has notice of a disability, then the employer must make a reasonable effort to accommodate an injured person in returning to work. You just read a very complex legal sentence and it seemed so simple.

First, Notice, how does an employer get notice of an injury? If you are injured at work and have a workers' compensation claim, the notice is pretty obvious because the employer will be tracking the injured workers return to work progress and will get notice of any disability. What about something that occurs away from work? Well the injured worker may have a duty to give notice to the employer. The easiest way to give notice: Give your employer's HR department a note from your doctor outlining your disability. The next step is important, follow up delivery of the note with an email directed to the HR department confirming delivery of your note and requesting accommodation.

Second, Disability, what constitutes a disability? This is a difficult question and has various definitions. In the context of ADA and FEHA a disability most likely means, any impairment, which requires some type of job Accommodation. This can be anything from a broken limb, a paralysis, a heart condition, a mental stress condition, breathing or circulatory issues, and even psychological issues.

Third, reasonable effort most likely means the employer has an affirmative obligation to contact the employee and should have a meeting with the employee to see if the employee's disability can be accommodated. By this rationale, the employee also has an obligation to respond to the employer's efforts to meet with the employee. If you are going to an accommodation meeting and you have an open personal injury claim or workers' compensation, then your attorney should attend the meeting with you to make certain the accommodation meeting does not affect your case in chief.

Fourth, Accommodation. What is an accommodation? It generally means, can the injured worker accomplish the essential tasks of the job with REASONABLE accommodation. There are several factors bearing on reasonable: the cost to modify the workspace; the loss of productivity; the interruption to the work environment; Safety of the worker and those around him; the ability to retrain or move the worker to a position within the company; any other reasonable factor the parties choose to consider. This means there is no obvious answer to what it means to accommodate. Once again it becomes a judgment call as to the REASONABLE actions of the employer.